other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider” . The words employed in the proviso to Section 12 of the Act, makes it clearly appear that the magistrate will take into consideration the Domestic Incident Report, if received, meaning thereby, that the Protection Officer or the Service Provider can file a Domestic Incident Report, and, in the event they file it, it needs to be considered by the court. The word employed in the proviso, to the understanding of this court, is not mandatory that there must be a Domestic Incident Report and court has to consider the same. Therefore, rejection of the prayer for calling of the Domestic Incident Report is not violative of the provisions of Section 12 of the Act nor it appears to have prejudiced the respondents in the case. The learned counsel for the petitioner has submitted that for the last 5 years the aggrieved person and the respondents are not in domestic relationship. There is a divorce proceeding pending between them and there is also a Title Suit for declaration of the marriage between them a nullity. That apart, in a proceeding under Section 125 Cr.PC, the aggrieved person was awarded monthly maintenance allowance of Rs. 800/- to be paid by the respondent/husband. Even if such contention made by the learned counsel for the petitioner is accepted to be correct, yet, the fact remains that the aggrieved person and the respondent/husband do not cease to be husband and wife due to their living separately in the absence of any declaration as regards nullity of their marriage or in the absence of any order in the divorce proceeding dissolving their marriage. They are not living jointly in a domestic relationship may not give rise to any relief in respect of the torture upon the aggrieved person. But, the aggrieved person, being the wife, is entitled to residential provision, whether it is a shared house or a rented accommodation. Therefore, in the considered view of this court, there is no illegality in the aforesaid order under the said Act. That apart, getting monthly maintenance by the aggrieved person in the proceeding under Section 125 Cr.PC , is not a bar for getting maintenance in a proceeding under the Act as provided in Section 26 of the Act.
